Opinion
C. A. 0:21-2686-TLW-SVH
04-28-2022
Travis Price, Plaintiff, v. City of Rock Hill and Ralph Norman, in his individual capacity, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, COLUMBIA, SOUTH CAROLINA UNITED STATES MAGISTRATE JUDGE
In this case, a citizen argues he was falsely arrested and subjected to excessive force, the police department publicly issued a statement indicating the citizen was at fault, and, thereafter, a Congressman posted defamatory information about him on the Congressman's Facebook page. The Congressman seeks dismissal of the defamation claim against him based on sovereign immunity.
Travis Price (“Plaintiff”) originally filed the instant complaint in the York County Court of Common Pleas. The case was removed to this court on August 20, 2021. Plaintiff asserts multiple claims against the City of Rock Hill (“City”) and one claim against the Honorable Ralph Norman, U.S. Representative for the 5th Congressional District of South Carolina (“Norman”) for defamation, a claim also asserted against the City. [See ECF No. 24 ¶¶ 149-175].
This matter comes before the court on Norman's motion to dismiss. [ECF No. 33]. The motion having been fully briefed [ECF Nos. 37, 38], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge deny Norman's motion to dismiss.
I. Factual and Procedural Background
The facts alleged by Plaintiff as relevant to the resolution of the instant motion are as follows: On June 23, 2021, Plaintiff was driving home, saw his brother and law enforcement at a gas station, and, after stopping, was instructed by law enforcement to “stand by” so the officers could give Plaintiff some of his brother's belongings and personal effects, because his brother was being arrested. [ECF No. 24 ¶¶ 14-16]. Plaintiff alleges that officer J. Moreno (“Moreno”) then “attacked Plaintiff without cause or legal justification, ” resulting in Plaintiff being “choked, physically assaulted, slammed to the pavement with great force, handcuffed, . . . placed under arrest . . ., searched, imprisoned, forced to pay bond to get out of jail approximately 36 hours post arrest, and obtain legal counsel.” Id. ¶¶ 18, 20, 36.
Later that day, the City issued an official written statement, indicating that Plaintiff was noncompliant, belligerent, and physically combative, as follows:
Officers began searching Price when his brother, Travis Price, arrived on scene and approached Officers. Travis Price attempted to gather the belongings Officers were removing from Ricky's person and was told to move back. Travis then used his body to bump the Officers backward as he continued trying to get near his brother to reach for the belongings while yelling belligerently. Travis was forced back and told he was under arrest for interfering, and physically contacting officers. Travis shoved Officers, refusing to comply with orders to place his hands behind his back. Officers pushed Travis against a large tank located behind him, telling him to put his hands behind his back. Travis continued his non-compliance and Officers began struggling with Travis. While attempting to gain control of Travis, Officers and Travis went to the ground.Id. ¶ 42. The next day, Norman, who represents Rock Hill and the surrounding communities in Congress, posted the following statement on his official “Rep. Ralph Norman” Facebook page:
* Rep. Ralph Norman *
Public Official ■ June 24 at 4:15 PM
As loudly as I can say this: THANK YOU to the Rock Hill Police Department
I'm so fed up with those who demonize our law enforcement officers. Just look at what happened yesterday in Rock Hill. Our officers were doing the absolute BEST THEY COULD to get those suspects apprehended and keep the situation from escalating any further. And a cell phone video - one that contained no footage whatsoever of the events leading up to that moment - was all it took to get protestors riled up, long before they themselves had ANY IDEA what actually took place.
Not only that, but several of the protestors set fires next to the police station in what could only be described as an attempt to bum the place down. It took a police escort to get the fire department on scene, but not without rocks being pelted at the police car. It's unbelievable!
Around 9 PM last night, the Rock Hill Police Department issued an account what actually happened earlier in the day. They were dealing with a known offender. K-9 smelled drugs in the vehicle. A search confirmed as much: two bags of marijuana. Oh, and a bag a crack cocaine that was found later. Not to mention a gun that was ILLEGAL for him to possess, since he'd previously been convicted of a violent crime.
As police were processing that suspect his brother rolls up and starts interfering with things, trying to get evidence out of the car, and was non-compliant with officers' instructions.
Meanwhile, the first suspect asked that the jewelry he was wearing be removed and handed over to someone else on scene. Officers agreed to that request and temporarily removed his handcuffs in order to get the jewelry off. But as soon as his hands were free, according to the police report that first suspect started throwing punches in an attempt to flee, striking an officer in the face.
So what did we hear from the protestors? Or from they suspect's lawyer this morning? That there was "no reason for the use of force we saw on that video." Umm, I'm sorry, but you don't get to take swings at officers. You don't get to be non-compliant with their lawful orders. And you don't get the luxury of resisting or evading arrest.
It was a physical confrontation, yes, but the K-9 was never released from its handler, and officers did not deploy their tasers or weapons. There will be reviews to come of course but I believe those law enforcement officers from the Rock Hill Police Department and the U.S. Department of Homeland Security did EVERYTHING POSSIBLE to get the situation under control without escalating the use of force. It could have turned out significantly worse - for police and these suspects - had law enforcement not been able (or willing} to use non-lethal force in this situation.
Folks, our police officers are not here to punish people. That's not what they do. Their job is to enforce the law, apprehend those whom they believe have broken the law, and turn those individuals over to the justice system.
And I stand firmly behind each and every one of them. THANK GOD for every one of those men and women, and all who walk the thin blue line.
News story: httpsy/bit.ly/rhpd-usdhs-officersId. ¶ 73.
The incident involving Plaintiff was recorded by a witness and resulted in “substantial public backlash” and protests. Id. ¶¶ 38-39. On July 8, 2021, Moreno was terminated, arrested, and charged for assault and battery regarding his treatment of Plaintiff, and the City dismissed the criminal charges against Plaintiff, confirming at a press conference that “Plaintiff did not commit any criminal acts and that Plaintiff did nothing wrong.” Id. ¶ 65.
On July 15, 2021, Norman updated his social media post as follows:
Rep.RalPh Norman © ...
Jun 24
*** UPDATE JULY 15th ***
My original post below has been updated/edited to reflect information that was released by the RHPD later in their investigation, following the department's initial statements on June 24th.
Despite these updates, as I have said repeatedly, law enforcement officers who serve their communities with honor and dignity will always have my respect. Their work is extraordinarily difficult, and the life & death decisions they routinely make in the blink of an eye are beyond what most of us could ever comprehend.
It is maddening to me to see a lack of appreciation and support for our men and women in law enforcement, which unfortunately permeates too many parts of our society today. This has to stop. It is right to demand transparency and accountability from our law enforcement agencies - nobody disagrees with that. Nor should anyone disagree that when law enforcement officers are held to account, it should be based on fair, appropriate standards that are blind to external pressures and the public spotlight.
*** EDITED ORIGINAL POST FROM JUNE 24 ***
As loudly as I can say this: THANK YOU to the Rock
Rep. Ralph Norman © ...
Jun 24 • 0
As loudly as I can say this: THANK YOU to the Rock Hill Police Department.
I'm so fed up with those who demonize our law enforcement officers. Just look at what happened yesterday in Rock Hill. Our officers were doing the absolute BEST THEY COULD to get those suspects apprehended. Yet a cell phone video - one that contained no footage whatsoever of the events leading up to that moment - was all it took to get protestors riled up, long before they themselves had ANY IDEA what actually took place.
Not only that, but several of the protestors set fires next to the police station in what could only be described as an attempt to burn the place down. It took a police escort to get the fire department on scene, but not without rocks being pelted at the police car. It's unbelievable!
Around 9 PM last night, the Rock Hill Police Department issued an their account what happened earlier in the day. They were dealing with a known offender. K-9 smelled drugs in the vehicle. A search confirmed as much: two bags of marijuana. Oh, and a bag a crack cocaine that was found later. Not to mention a gun that was ILLEGAL for him to possess, since he'd previously been convicted of a violent crime.
✓ Rep. Ralph Norman © ...
VF Jun 24-0
It was a physical confrontation, yes, but the K-9 was never released from its handler, and officers did not deploy their tasers or weapons. There will be reviews to come, of course, but I believe those law enforcement officers from the Rock Hill Police Department and the U.S. Department of Homeland Security did EVERYTHING POSSIBLE to get the situation under control. It could have turned out significantly worse - for police and these suspects -had law enforcement they not been able (or willing) to use non-lethal force in this situation.
Folks, our police officers are not here to punish people. That's not what they do. Their job is to enforce the law, apprehend those whom they believe have broken the law, and turn those individuals over to the justice system.
And I stand firmly behind each and every one of them. THANK GOD for every one of those men and women, and all who walk the thin blue line.Id. ¶ 103.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
Norman makes two primary arguments in support of his motion to dismiss. First, Norman argues
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of this case against Congressman Norman because Mr. Price's claim is barred by the doctrine of sovereign immunity. The only potential waiver of sovereign immunity is the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. (“FTCA”), which is inapplicable to Mr. Price's claim because he has failed to first exhaust his administrative remedies, and because the FTCA expressly precludes recovery for the type of claims asserted.[ECF No. 33-1 at 12]. In the alternative, Norman also argues that the amended complaint against him must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because it fails to state a claim upon which relief can be granted. See id. The court addresses each argument in turn below.
1. Sovereign Immunity and the FTCA
“The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted); Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir. 1989) (“[A]n action seeking specific relief against a federal official, acting within the scope of his delegated authority, is an action against the United States, subject to governmental privilege of immunity.”) (citing Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 688 (1949)). This immunity extends to members of Congress when sued in their official capacities. See Rockefeller v. Bingaman, 234 Fed.Appx. 852, 855 (10th Cir. 2007) (“[S]overeign immunity forecloses [a plaintiff's] claims against [members of Congress] . . . as individuals acting in their official capacities.”); Keener v. Congress, 467 F.2d 952, 953 (5th Cir. 1972) (per curiam) (sovereign immunity renders Congress immune from suit).
Plaintiff does not dispute that a claim brought against a member of Congress is barred by sovereign immunity when that claim is asserted against a member in his official capacity; however, Plaintiff argues Norman is not entitled to sovereign immunity here because (1) he has been sued in his individual capacity and (2) he has not complied with the requirements of 28 U.S.C. § 2679. [ECF No. 37 at 3].
Turning to Plaintiff's second argument, the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, was enacted with the stated purpose of “protect[ing] federal employees [such as Members of Congress] from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common torts of federal employees with an appropriate remedy against the United States.” Jamison v. Wiley, 14 F.3d 222, 227 (4th Cir. 1994); see also 28 U.S.C. § 2679. As described by the Fourth Circuit:
The centerpiece of the [Westfall] Act was § 5, which amended the FTCA to provide that an FTCA action against the United States is the sole remedy for any injury to person or property caused by the negligent or wrongful acts of a federal employee “acting within the scope of his office or employment, ” “exclusive of any other civil action or proceeding for money damages . . . against the employee whose act or omission gave rise to the claim.”Jamison, 14 F.3d at 227 (citing 28 U.S.C. § 2679(b)(1)).
As further explained by the Fourth Circuit, “Section 6 of the [Westfall] Act contained several procedural provisions designed to implement the absolute immunity created by section 5.” Id. These provisions include authorizing “the Attorney General to issue what has come to be called a ‘scope certification'-a certification that ‘the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.'” Id. (citing 28 U.S.C. § 2679(d)(1)-(2)). If such a certification is issued, “the action ‘shall be deemed' to be an action against the United States under the FTCA, and the United States ‘shall be substituted as the party defendant.'” Id. (citing 28 U.S.C. § 2679(d)(1)). However, if the Attorney General declines to issue such a certification, “the Act permits the employee to ‘petition the court to find and certify that the employee was acting within the scope of his office or employment.'” Id. (citing 28 U.S.C. § 2679(d)(3)). “If the court so certifies, the action ‘shall be deemed' to be an action against the United States under the FTCA, and the United States ‘shall be substituted as the party defendant.'” Id. (citing 28 U.S.C. § 2679(d)(3)).
Plaintiff argues Norman “has not followed this statutory procedure, ” in that “no Attorney General certification has been produced, ” “[i]t is unclear as to whether Defendant Norman sought the Attorney General's certification and it was denied or whether he chose to not seek it all, ” and Norman “has not followed the proper procedure to seek certification from the Court via petition for certification.” [ECF No. 37 at 4-5].
Norman argues certification is not necessary and seeks this court to (1) sua sponte determine that he was acting in the scope of his employment when he issued the allegedly-defamatory statement and (2) then proceed as if certification had been issued, holding that the FTCA does not provide for waiver of sovereign immunity as to defamation claims, thus dismissing Plaintiff's defamation claim against Norman, a claim more properly asserted against the United States. See, e.g., Dolan v. United States, 514 F.3d 587, 593 (6th Cir. 2008) (“if the certification is well taken, that is, if the defendant federal employee was acting in the scope of his or her employment, substitution of the United States as defendant is appropriate and the district court must assess the plaintiff's claims pursuant to the Federal Tort Claims Act (FTCA).” (citations omitted)).
Few courts, both in this Circuit and otherwise, have addressed this issue; however, a review of those that have indicate that a party is premature in invoking the immunity provisions of the FTCA, as amended by the Westfall Act, prior to availing himself of the procedural provisions of the Westfall Act as found in 28 U.S.C. § 2679.
In Salazar v. Ballesteros, 17 Fed.Appx. 129, 130 (4th Cir. 2001), the Fourth Circuit addressed the intersection of three statutes, the FTCA, the Westfall Act, and the Federal Employees' Compensation Act (“FECA”), where a United States Postal Service employee was allegedly assaulted by a coworker, and then sued him in state court. The coworker thereafter removed the case to federal court. The district court granted the coworker's motion to dismiss, holding that FECA barred the action.
The Fourth Circuit reversed, recognizing a line of cases holding that FECA does bar a suit against the United States, but does not bar a federal employee's suit against individual co-employees, and noting how the interaction of the various statutes would normally have played out, if certification under the Westfall Act had been sought in the case:
The Westfall Act would abrogate Salazar's right to sue Ballesteros, the United States would be substituted as the defendant, and Salazar's only remedy would be against the United States under the FTCA. FECA then might bar her FTCA suit and allow only worker's compensation as a remedy. The problem in this case, however, is that the Westfall Act never was activated, because Ballesteros apparently failed to follow the
elaborate statutory procedures for (1) notifying the Attorney General of the suit, (2) having the Attorney General certify his actions as “within the scope of employment, ” and (3) petitioning the court for such certification in the event that the Attorney General refused to do so. See 28 U.S.C. §§ 2679(c), (d). Notably, the Seventh Circuit considered this very problem, though not in the FECA context, in Sullivan v. Freeman, 944 F.2d 334 (7th Cir. 1991). The Sullivan court found that the defendant-employees were not yet immunized by the Westfall Act because they failed to follow these procedures, and concluded that “doubtless on remand . . . the district court will be asked whether the defendants can still invoke the Act's protection or have waived it.” Id. at 337.
Because of this procedural problem, Salazar's suit remains against her co-employee and not against the United States. Under these circumstances, we follow the Allman line of cases, and hold that FECA does not prohibit the plaintiff from suing a co-employee. Therefore, the district court's judgment is reversed and remanded for further proceedings consistent with this opinion.Salazar v. Ballesteros, 17 Fed.Appx. 129, 131-32 (4th Cir. 2001); see also Cruz v. United States, C/A No. 5:12-2149-CMC-KDW, 2013 WL 5231542, at *5 (D.S.C. Sept. 13, 2013) (“No certification or petition has been filed in this case. Given the elaborate statutory procedures for notification, certification, and petition, the court is without sufficient information to ‘determine on its own initiative whether the suit is against a federal employee acting within the scope of his employment.'”) (citing Sullivan, 944 F.2d at 337)); U-Haul Int'l, Inc. v. Est. of Albright, 626 F.3d 498, 501 (9th Cir. 2010) (“Westfall Act doesn't empower the district court sua sponte to abrogate the federal government's sovereign immunity and subject it to the risk of liability.
Reading the Act otherwise would have serious implications for the separation of powers. And, by failing to provide U-Haul and the United States with any opportunity to oppose Albright's substitution, the district court denied those parties due process. We therefore conclude that the district court erred in substituting the United States for Albright.”) (citations omitted)).
As in Salazar, here, too, the problem in this case is that the Westfall Act has not been “activated” and the case remains against Norman, not the United States. The District of Maryland, in addressing a similar issue on summary judgment, denied summary judgment, explaining as follows:
While Defendant is correct in stating that the FTCA protects federal employees from tort claims arising from their scope of employment, the burden is on Defendant to satisfy the statutory and procedural elements in order to obtain personal immunity. Defendant's burden has not been met. The Court cannot determine at this stage whether Defendant was acting within the scope of her employment. In the current posture of the case, this decision rests solely with the Attorney General. 28 U.S.C. § 2679(d)(1). Accordingly, since Defendant has not followed the proper procedures under the FTCA, the case remains against Defendant and the United States is not a proper party at this time.Butt v. Williams, C/A No. CBD-20-2318, 2021 WL 3172271, at *3 (D. Md. July 27, 2021).
Given this recommendation, it is unnecessary to address Plaintiff's further argument that he is entitled to discovery on the scope of employment issue pursuant to the FTCA claim.
Norman disagrees, arguing “certification is neither required, nor is it dispositive of the scope of employment question.” [ECF No. 38 at 5]. First, whether certification is dispositive does not address the relevant issue as to whether certification is necessary. Second, out-of-circuit case law cited by Norman to support his argument that certification is not necessary is not persuasive, particularly where the cases were either determined at a significantly different procedural posture or are otherwise inapposite.
The Sixth Circuit affirmed dismissal of a defamation claim against a member of Congress where no certification had been sought; however, it does not appear the certification issue was challenged in that case in the district court, or even on appeal, as has been done here:
Plaintiffs emphasize that neither Senator Warren nor Representative Haaland have received certification from the Attorney General (“AG”) that their conduct was within the scope of their employment .... It does not appear from the record that either Defendant sought AG certification prior to filing their motion to dismiss under the Westfall Act. Regardless, Plaintiffs do not suggest that this failure to seek AG certification precludes Defendants from prevailing on their theory of sovereign immunity. Instead, all Plaintiffs request is that we not defer to the district court's independent finding that Defendants were within the scope of their employment. See 28 U.S.C. § 2679(d)(3) (empowering district courts to “to find and certify that the employee was acting within the scope of his office or employment” upon motion of the employee). But Plaintiffs are already receiving the most favorable standard of review they can ask for on appeal because our review of the district court's order to dismiss for lack of subject matter jurisdiction is de novo.Does 1-10 v. Haaland, 973 F.3d 591, 598 n.2 (6th Cir. 2020), cert. denied sub nom. Does v. Haaland, 141 S.Ct. 2466, 209 L.Ed.2d 529 (2021); see also 28 U.S.C. § 2679(d)(3) (“In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment.”).
Likewise, additional cases cited by Norman are inapposite to the instant case, particularly where, here, the United States has not appeared in this action, nor filed a motion to dismiss. See Fernandini v. Samuels, C/A No. 1:15-3843-GHW, 2017 WL 2544039, at *2 (S.D.N.Y. June 9, 2017) (“Courts have held, however, that formal certification is not required; a brief filed by the United States on behalf of defendant employees may serve as a petition to certify that they were acting within the scope of their employment.”); Cates v. Williams, C/A No. 08-1529(HB), 2009 WL 723021, at *5 (S.D.N.Y. Mar. 19, 2009) (same where the United States Attorney had appeared in the action and filed motion to dismiss); see also Dowdy v. Civ. Air Patrol, C/A No. 5:04-563-FL, 2006 WL 8438598, at *2, *18 & n.17 (E.D. N.C. Sept. 29, 2006) (noting that “[a]lthough this defendant has not filed either a certification petition or motion to dismiss, the exclusivity provisions of the Westfall Act apply equally, ” but also noting that the a previous certification made by the United States Attorney General found that all federal employees involved in the accident were not acting withing the scope of their employment, including the defendant at issue).
Norman also refers to Rose v. Borsos, C/A No. 2:17-204, 2018 WL 3967673, at *5 (E.D. Tenn. Aug. 17, 2018). However, in Rose, the district court granted defendant's motion to substitute the United States as defendant as to plaintiff's FTCA claims, as upheld by the Sixth Circuit. See Rose v. Roe, Nos. 18-5775/5970 (6th Cir. Apr. 10, 2019).
Although Norman argues that “[t]his Court should . . . evaluate the FTCA's application at the earliest stage possible to give effect to the statutory immunity provision” [ECF No. 38 at 10], he has not provided argument or case law that indicates he is not subject to the procedures as outlined in 28 U.S.C. § 2679 at this time. Accordingly, the undersigned recommends the district judge deny without prejudice Norman's motion to dismiss based on FTCA-related arguments as premature.
2. Defamation
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). Malice and damages are presumed in the case where the defamation is actionable per se. See Holtzscheiter, 506 S.E.2d at 502; see also id. (“In other words, if the trial judge can legally presume, because of the nature of the statement, that the plaintiff's reputation was hurt as a consequence of its publication, then the libel is actionable per se. Essentially, all libel is actionable per se.”) (citations omitted).
Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct. The statements at issue here are in the form of libel.
Here, Norman's statements constitute a sufficient basis for Plaintiff's defamation claim, where Norman stated on June 24, 2021, that Plaintiff was a “suspect” and “roll[ed] up” and started “interfering with things, trying to get evidence out of the car, and was non-complaint with officers' instructions, ” and, on July 15, 2021, where Norman again repeatedly referred to Plaintiff as one of two “suspects.” [ECF No. 24 ¶¶ 73, 103]. As stated by this court, “the court will not dismiss plaintiffs' defamation claim as it relates to this blog post because in the light most favorable to plaintiffs, the statements are contextually read as factual assertions that Leask's behavior was criminal in nature.” Leask v. Robertson, C/A No. 2:21-2367-DCN, 2022 WL 673760, at *11 (D.S.C. Mar. 7, 2022).
However, the court's inquiry does not end there. See McGlothlin v. Hennelly, 370 F.Supp.3d 603, 614 (D.S.C. 2019) (holding that even though the plaintiff had sufficiently pled defamation under South Carolina law, “the court must first consider what limitations the First Amendment's right to free speech places on the reach” of the plaintiff's defamation suit”); Snyder v. Phelps, 580 F.3d 206, 217 (4th Cir. 2009) (“It is well established that tort liability under state law, even in the context of litigation between private parties, is circumscribed by the First Amendment.”).
The First Amendment imposes limitations based on the subject of the alleged defamation, as well as the type of speech at issue. Id. As to the first limitation, public officials and public figures may only recover damages for defamation when the allegedly defamatory statement was made with actual malice. Id. at 218; see also Tharp v. Media Gen., Inc., 987 F.Supp.2d 673, 679 (D.S.C. 2013) (“Public figures, public officials, and limited-purpose public figures may only recover for defamation upon a showing of actual malice by clear and convincing evidence.”). With regard to the type of speech, statements that “cannot ‘reasonably [be] interpreted as stating actual facts' about an individual” are protected by the First Amendment. Snyder, 580 F.3d at 218 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)).
Here, there is no dispute that Norman's applicable statements assert “actual facts about an individual.”
The parties disagree as to whether Plaintiff is a public figure or a limited purpose public figure and whether the allegedly defamatory comments addressed matters of public concern. Norman represents that the “private-figure public controversy pleading standard applies in this case, ” [ECF No. 33-1 at 28], and Plaintiff refers to himself as “a private citizen, ” albeit disagreeing that “false statements about a private citizen . . . is [] a matter of public concern ....” [ECF No. 37 at 8].
It appears that the allegedly defamatory statements at issue are opinions related to matters of both local and national public concern, in that the circumstances of Plaintiff's arrest were a matter of interest to Norman's constituents, as alleged by Plaintiff [see ECF No. 28 ¶¶ 55-63 (identifying coverage in local news outlet along with examples of engagement by followers)], and in that they also arose within the broader context of an ongoing national discourse regarding the role of law enforcement in the United States. To the extent the court so finds, Plaintiff “is foreclosed by Gertz from obtaining any relief beyond actual damages unless he proves that [Norman] acted with actual malice regarding the falsity of the statements.” McGlothlin, 370 F.Supp.3d at 617-18.
However, the court need not resolve this issue at this time where Plaintiff has sufficiently pled actual malice, where he pled that Norman added allegations to his original Facebook post that were not included in the City's official statement and did not remove all negative references to Plaintiff following the City's retraction, as follows:
164. Defendant Norman acted with actual malice with respect to his original statement by knowingly or recklessly adding false allegations, including alleging that the Plaintiff attempted to remove evidence from the vehicle.
165. Defendant Norman acted with actual malice with respect to his updated statement by knowingly failing to explicitly correct this demonstrably false statement about the plaintiff.
166. Defendant Norman could not reasonably have believed his original false statement to have been true and was conscious that his updated statement failed to correct the original false statement.[ECF No. 24].
In considering the instant motion, the court must accept the complaint's factual allegations as true. Based on the above allegations, Plaintiff has sufficiently pled actual malice if the court finds him to be a public figure or limited-purpose public figure. See Kent v. Hennelly, C/A No. 9:19-1383-DCN, 2019 WL 5896442, at *7 (D.S.C. Nov. 12, 2019) (holding the plaintiff sufficient pled actual malice where the plaintiff alleged defendant made allegedly defamatory statements even after he “conducted extensive research regarding Kent-research that revealed (or would have revealed) that Kent has never officially been accused-let alone convicted-of any crime (including public, or any other type of corruption)”).
Norman additionally argues Plaintiff has failed to sufficiently plead actual damages sufficient to support a claim for defamation. [ECF No. 33-1 at 26-28 (“Plaintiffs' claim against Congressman Norman for defamation is foreclosed by the First Amendment because the challenged public statement addressed a matter of public concern, in a public place, and Mr. Price's claims allege only injuries stemming from general reputational and emotional harms.”)].
As explained by this court:
The other important result of this First Amendment analysis is that, if McGlothlin were found to be a private plaintiff, he must prove that the statements are false and that he suffered harm in order to collect actual damages. Ordinarily under South Carolina defamation law, the fact that the statements are libel would qualify them as actionable per se, which removes the requirement that that the plaintiff prove that he suffered general damages. However, the Gertz / Milkovich First Amendment standard reasserts this requirement that McGlothlin prove his actual damages, despite South Carolina common law not requiring this for actionable per se defamatory statements. McGlothlin's complaint alleges that Hennelly's statements have injured his business and his reputation in the community, that he has suffered “injured feelings, mental suffering and anguish, and personal and public humiliation, ” and finally that he has “suffered damages, including but not limited to, lost opportunities, diminished sales and trade relations, and harm to his goodwill associated with his ongoing business and reputation in the community.” ECF No. 1 ¶¶ 22, 23, 34, and 35. The court again finds these allegations sufficient to survive a motion to dismiss, given that the specific details supporting these alleged harms might be produced during discovery.McGlothlin, 370 F.Supp.3d at 617-18.
Although Norman cites to the McGlothlin case, discussed above, he does not address the main holding of the case: that the plaintiff sufficiently alleged a defamation claim. Instead, he relies on cases decided on summary judgment or post-trial. See, e.g., Snyder v. Phelps, 580 F.3d 206, 211 (4th Cir. 2009), McGlothlin v. Hennelly, No. 20-1537, 2021 WL 2935372, at *2 (4th Cir. July 13, 2021).
Here, too, Plaintiff has alleged as follows:
157. This is not about how Plaintiff's “feels” about what was said about him, but instead about largescale injury to his reputation, as evidenced in part by the comments written on social media by people who read and/or heard Defendants' published defamatory statements as set forth herein and additionally on the internet.
158. The false statements made by the Defendants have impugned and impeached the honesty, integrity, virtue, reputation, and credibility of the Plaintiff.
159. The false statements made by the Defendants have directly and proximately caused injury and damage to Plaintiff's reputation and good name in the community.
160. The false statements made by the Defendants have directly and proximately caused personal injury to the Plaintiff, including anxiety, embarrassment, humiliation, emotional distress, and mental suffering.
161. The false statements made by the Defendants have directly and proximately caused injury and damage to Plaintiff's professional reputation, resulting in pecuniary loss in the form of future lost business opportunities and lost business income . . . .[ECF No. 24].
Plaintiff has sufficiently pled a claim for defamation against Norman. Because there is no indication in the record that Norman has availed himself of the applicable Westfall Act procedures, Plaintiff's claim for defamation remains against Norman, and the undersigned recommends the district judge deny Norman's motion to dismiss at this time.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge deny Norman's motion to dismiss without prejudice. [ECF No. 33].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).